Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 1

December 7, 2010 — xanthippa

Today, I spent observing more ‘courtly manners’.

In the court-room, that is.

With Madam Justice Blishen presiding over the next installment in the ‘Warman v Free Dominion’ saga.

Background:

  • FreeDominion is the oldest, longest-running online message board in Canada which deals with political matters.
  • Richard Warman is a former Canadian Human Rights Commission lawyer and the most frequent user of Canada’s Human Right’s Legislation’s controversial ‘Section 13’, often described as ‘the censorship clause’.  Richard Warman has also personally pursued complaints under ‘Section 13’ where he was not the ‘injured party’ – on the grounds that there could, one day, be an injured party – and collected a tens of thousands of tax-exempt dollars in ‘damages’ as a result.
  • Richard Warman has also initiated tens, perhaps hundreds, of civil lawsuits against people whom he perceives as having slandered or defamed him
  • Many people on the internet call Mr. Warman all kinds of things….some of them not nice things.
  • Several people have made posts on FreeDominion which Mr. Warman believes defame him – and he has attempted to sue them, as well as the people who run the FreeDominion site, Mark and Connie Fournier.
  • As they have posted under pseudonyms, Mr. Warman has not been successful in discovering the identity of all the people who posted the comments he believes to be defamatory.  He has therefore demanded that the Fourniers reveal to him the identities /IP addresses of these anonymous people, so he can sue them
  • Earlier this year, in an appeal, FreeDominion successfully argued that they should not be expected to just hand over this information when asked:  a ‘prima facie’ case has got to be made that there are indeed grounds for a lawsuit for defamation there, first!  There were two ‘other parties’ permitted to speak to the appeals court about this:  the Civil Liberties people and Michael Geist’s ‘Internet Freedom’ people.
  • THIS HEARING was to determine whether or not the conditions for the disclosure of identities of anonymous bloggers (including a ‘prima facie case’ for a defamation lawsuit in these posts) have indeed been met.

 

And what a hearing it was!

Since this hearing was to determine whether there was there was sufficient reason for the disclosure of the identities of anonymous bloggers, perhaps it is best to re-state the conditions, as per the above-mentioned appeal.  From Defamation Law Blog:

After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules:

  • whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
  • whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
  • whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and
  • whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

[Warman, at para. 34]

To reduce the anticipation a little, let me first state that the third point was not much discussed:  everyone agreed that Mr. Warman had indeed done a lot to ferret out the identities of the anonymous bloggers.  So, the arguments revolved around the other 3 points:expectation of anonymity by the posters, whether there is enough material there to proceed with a defamation suit (as in, not just a nuisance lawsuit) and last but not least, balancing of ‘legitimate interests’.

The morning arguments opened a little late:  there was another motion scheduled ahead of this hearing – one involving an almost 30-year lawsuit over some inheritance, which was in the 2nd and 3rd generation of litigants.  I suppose this set the tone a little…

This earlier motion hearing meant that Madam Justice Blishen did not begin to hear this case until two minutes to noon.  To my untrained, layman’s eyes, it looked like this was very good news for Warman and his legal team (headed up by the eloquent and expressive Mr. James Katz).  Mr. Warman kept leaving the court-room and coming back with more and more papers, which he quietly discussed with his lawyers.  Mr. Katz’s student also kept running into the room, bringing in reams of paper and passing them to her boss.

I wondered what this was all about… and I suspect the reason might have been the second lawyer, sitting on the Free Dominion side of the lawyer’s table.  The ever-loyal and very intelligent Barbara Kulaszka was, again, representing Connie Wilkins-Fournier and Mark Fournier of Free Dominion.  The other lawyer was representing several of the other co-defendants in the lawsuit – and was none other than the formidable ans wholly unexpected Mr. Doug Christie!

No wonder there was some serious scrambling from the Katz team!

As the hearing opened, Mr. Katz argued that as this is a hearing to determine if the conditions for revealing the identities of the anonymous posters has been met and not the defamation hearing itself, it only concerns the Fourniers and not the other co-defendants in the defamation suit.  Therefore, Mr. Katz suggested, Mr. Christie had no standing there and should not be permitted to address the court.

In my completely legally untrained mind, it looked like ‘they’ really really really really did not want to give Mr. Christie a chance to speak at all – more than just mere procedural jostling for position or some type of lawyer-bickering.  It almost smelled like ‘they’ were afraid of M. Christie.  And here, I thought he was best known for making good cookies…

All right – I am getting silly.  It has been a very long and exhausting day for me – if I continue now, the likelihood that I will craft my report to accommodate as many puns as possible will increase with every new line.

So, please, forgive me:  I will sign off for now and continue my tale tomorrow.

 

Posted in freedoms, opression, politics, society, technology. Tags: , , , , , , , , , , . 9 Comments »

The ‘Wilson’ case

April 13, 2010 — xanthippa

This is supporting material for my narrative of the ‘Richard Warman v FreeDominion/internet privacy’ appeal hearing on 8th of April, 2010.

The arguments made during the hearing referenced various cases, rulings and precedents. Since I am not a lawyer, nor trained in law in any way, it helped me understand what was going on when I looked up a few of them.

The ‘Wilson’ case

This may be a distasteful case, but the ruling in it establishes an important principle.

Miles Wilson was accused of possessing child pornography.  The police followed a trail where they found an IP address they believed would lead them to the suspect.  The police officer found out that that IP address was served by the ISP provider Bell Canada, and wrote them a ‘form lettter’ requestisng disclosure of the physical location of this IP address.  Based on this information, the police officer obtained a search warrant for the residence indicated, executed the search and found the evidence the police were seeking to prosecute Mr. Wilson.

An analysis of this case from ‘The Court’:

The fundamental issue before Leitch R.S.J. of the Superior Court of Justice was whether, in accessing the accused’s name and street address from Bell without first obtaining a warrant, police had infringed upon the accused’s reasonable expectation of privacy, contrary to s. 8 of the Charter. Remove the legalese and the issue in Wilson becomes far more dramatic: are Canadians free from unbridled state surveillance of their online activities while in the confines of their homes?

…

First, in rejecting the accused’s s. 8 claim, Leitch R.S.J. determined that one’s name and address, or that of one’s spouse, falls beyond the inference-resistant “biographical core” threshold of Plant. Second, Letich R.S.J. found that given the fact that names and address are “information available to anyone in a public directory”, they are, in isolation, largely meaningless pieces of information as far as s. 8 is concerned.

Here, the issue is in the criminal realm, not the civil case we are talking about here.  However, there are aspects of this case which were examined and discussed during the appeal hearing, specifically as related to the IP address, the expectation of privacy and the differences between this case and the one under review.

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The ‘York University’ case

April 13, 2010 — xanthippa

This is supporting material for my narrative of the ‘Richard Warman v FreeDominion/internet privacy’ appeal hearing on 8th of April, 2010.

The arguments made during the hearing referenced various cases, rulings and precedents. Since I am not a lawyer, nor trained in law in any way, it helped me understand what was going on when I looked up a few of them.

The York University case

York University v. Bell Canada Enterprises, 2009 CanLII 46447 (ON S.C.)

This is an important case because here, the Norwich order (precedent) was used to obtain information about email accounts from an ISP.

Some people wrote a letter about the president of York University which alleged ‘bad stuff’. York University wanted to find out who sent the email, and sued the internet provides (Bell Canada Enterprises and Rogers Communications) to get the information.  The Norwich order was accepted by the judge (G.R. Strathy J) as applying in this case, as per Slaw.ca:

The 5 elements identified in this case for granting such an order include:


(i) Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
(ii) Whether the applicant has established a relationship with the third party from whom the information is sought such that it establishes that the third party is somehow involved in the acts complained of;
(iii) Whether the third party is the only practicable source of the information available;
(iv) Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure, some [authorities] refer to the associated expenses of complying with the orders, while others speak of damages; and
(v) Whether the interests of justice favour the obtaining of disclosure.
[emphasis added]

…

Additionally, a strong case of fraud removes the possibility of a frivolous or vexatious application of the order.

However, there were some significant differences between the York University case and the ‘Warman v FD/internet privacy’ one.  This is just transcribing a few arguments from my notes from the hearing (any and all errors or misrepresentations are mine and I apologize – it is hard to write things down as fast as people are speaking).

Ms. Matheson for the CCLA (I am paraphrasing, keeping as true as possible to her speech):

The York case is a good decision because it ‘passed the test’ – the judges ruling was based on an established prima facie case.  There was a second reason – the agreement between the users and the ISP – but, the judge did apply the test fist.

Internet encourages free speech and anonymity is a critical component of this speech.

It is not a ‘blank cheque’ for defamation, but due regard must be given to Freedom of Expression. In this case, in front of the court now [the ‘Warman v FD/internet privacy’ case], no such consideration was given.

So, in my amateur observations, it appears to me that the significance of the ‘York University’ is two-fold:

  1. The judge first considered the strength and potential validity of the statements which were ‘potentially defamatory’ or ‘fraudulent’.   Only after a strong ‘prima facie’ (or ‘bona fide’ – there was some significant discussion there – it appears that ‘bona fide’ was acknowledged but the strength of it was sufficient for ‘prima facie, which is the test which both the CCLA and CIPPC suggested should be done – I think….but I could be wrong, as the discussion was fast-paced and I could not write that fast…but the fact remains that a strong case WAS established)  case was established – only after this strong case that the ‘speech’ was ‘defamatory’ had been established did the judge rule that the private information ought to be handed over.
  2. The anonymous people in the ‘York University’ had a user-agreement which permitted the disclosure of their information to authorities upon request.  This constitutes ‘consent’ to have their names released:  which is not the case in the FreeDominion user agreement, so there is a difference between the two cases right there, meaning a higher standard of proof is needed to compel the Fourniers to release the confidential information about their users.

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The ‘Norwich precedent’

April 13, 2010 — xanthippa

This is supporting material for my narrative of the ‘Richard Warman v FreeDominion/internet privacy’ appeal hearing on 8th of April, 2010.

The arguments made during the hearing referenced various cases, rulings and precedents. Since I am not a lawyer, nor trained in law in any way, it helped me understand what was going on when I looked up a few of them.

The Norwich Case

Norwich Pharmacal Co v Customs and Excise Commissioners [1974]AC 133, 175, HL

From the ‘Cambridge Law Journal’:

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

This case deals with disclosure of private information:  when and how.

In Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133, the owner of a patent knew that infringing goods were entering the UK, but could not ascertain their identity. The Commissioners, in the course of performing their duties, had information that would identify the imports. Also, they had unknowingly played a part in facilitating importation of infringing goods. The House of Lords found that where a third party had become involved in unlawful conduct, they were under a duty to assist the person suffering damage by giving them full information and disclosing the identity of wrongdoers.

In other words, the ‘disclosure’ of private information by a witness is not ‘automatic’ but some threshold of proof has to be met to satisfy a judge that the request is reasonable and for the information to be released.

However, if the person who holds the information sought is ‘an accomplice’ (in some way – knowingly or not), if that person is facilitating the ‘wrongdoing’, then they are compelled to release all relevant information right away.

This became important during the ‘Warman v FD/internet privacy’ case, because Free Dominion and its administrators, Connie and Mark Fournier, were named as co-defendants in the action by Mr. Warman.

The question, in my never-humble, not-legally-trained, opinion is whether the Fourniers are simply witnesses, or if they are also culpable in the defamation.

If they are simply witnesses who hold private information, then they cannot be compelled to release it until a judge is satisfied there is a ‘prima facie’ – or at least ‘bona fide’ case to do so.  (Yes, there was much back-and-forth as to which threshold, ‘bona fide’ or ‘prima facie’ ought to be used.)

If they are also partially guilty, then it is their duty to turn all information they might have over, right away.

That is the relevance of the Norwich precedent to this case.

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‘Automatic disclosure’ vs ‘Bona Fide’ vs ‘Prima Facie’: the differences

April 13, 2010 — xanthippa

The ongoing narrative of this appeal hearing is here.

Much of the discussion revolved over just how much justification does one need in order to demand information which could lead to the identification of people who posted anonymous comments on the internet, so Richard Warman couls sue them for defamation.  Can he just demand the information – and just get it released (‘automatic disclosure’), or do the people who hold the information (Free Dominion – Connie and Mark Fournier) have the right to withhold it until a judge decides that Mr. Warman has met either the ‘bona fide’ or ‘prima facie’ standard?

For those of us not trained in law, here is a quick overview of the legal terms ‘automatic disclosure’, ‘Bona Fide’ and ‘Prima Facie’ (as understood by me).

‘Bona Fide’

Latin for ‘in good faith’.

In the context of this case, the term was applied in the sense of ‘establishing a bona fide case’ that information was being sought ‘in good faith’, not frivolously.  For example, coming to someone and demanding the identity of their client carries no obligation to reveal such identity.  If, however, one can demonstrate that one truly intends to sue that client, this might (depending on circumstances) constitute a ‘bona fide’ (non-frivolous) reason for requesting the disclosure.

In effect, it distinguishes between someone requesting the information ‘just because they can’ and someone who truly and honestly needs it for some legal purpose.  Therefore, having to establish a ‘bona fide’ reason for requesting some information is a higher threshold than ‘automatic disclosure upon request’.

‘Prima Facie’

Latin for ‘on the face of it’ or ‘at first look’.

It is similar to ‘bona fide’, in that one must demonstrate a need for some information they would like released to them.  However, the threshold in ‘prima facie’ is higher:  one must not only demonstrate that one wishes to use the information (like, say, by filing a defamation suit), one must also demonstrate that there at least some evidence that, at first look, suggests one may have been defamed.

It does not require one to prove that one was defamed, only that at ‘first look’, he could have been.  A look at the statements themselves is sufficient to establish whether they could, potentially, be defamatory.  If not, then the ‘prima facie’ has not been met and there is no release of information.  If, on the other hand, the statements are such that they could, potentially, be defamatory, then the ‘prima facie’ threshold is met, the information is released and the lawsuit may proceed:  it will now be up to the lawsuit to determine if the statements were true or not (truth of the statements is a defense).

The differences between the thresholds of ‘need’ for the identity of the anonymous posters to the Free Dominion forum became an important theme in the hearing.  So, let me recap what my (untrained) understanding of the differences between them are:

Automatic disclosure:  anyone asks for the identity, claiming whatever reason, the information must be handed to them.

Bona fide case: only after one demonstrates that one has an ‘honest intent’ need for the information, like, say, legal action for defamation, the information must be handed to over.  This protects the anonymous people form having their identity revealed and potentially have their reputation damaged simply due to ‘frivolous requests’ – or from opening them to political persecution.

Prima facie case: only after one demonstrates that the statements which were made about one are indeed potentially defamatory, and that one does indeed intend to take action, must the information be handed over to them.  This protects the people form not only ‘frivolous requests’ for their identity to be revealed, but also from ‘frivolous lawsuits’ which have no chance of being successful, yet which in themselves are being used to ‘punish’ (lawfare and SLAPP suits would fall into this category).

I cannot stress strongly enough that I am not trained in law in any way, shape or manner.  These are simply the things I had to learn in order to understand the principles discussed during the ‘Richard Warman v. FreeDominion/internet privacy’ appeal hearing.  This is meant as a lay explanation – it helped me, I hope it will help you as well…..

More of my observations of this hearing – and tools to understand the case – are here.

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What the ‘Warman vs. FD/internet privacy’ case is all about

April 13, 2010 — xanthippa

When the ruling in this case was released in March of 2009, there was much commentary by smart and learned people of what this case is all about and what its implications are on our society.

Michael Geist is a law professor at University of Ottawa, where he holds the Canada Research Chair in e-Commerce and Internet law.  He is also the founder of Canadian Internet Policy and Public Interest Clinic (CIPPIC), an intervenor in the appeal hearing.  This is what he had to say:

Protection for anonymous postings is certainly not an absolute, but a high threshold that requires prima facie evidence supporting the plaintiff’s claim is critical to ensuring that a proper balance is struck between the rights of a plaintiff (whether in a defamation or copyright case) and the privacy and free speech rights of the poster.

Read the full post here.

Don Butler has a piece on the appeal:

Their decision could chill whistleblowers and others who use pseudonyms to post controversial comments, say civil libertarians.And, they maintain, if the judges support unmasking anonymous posters, that could erode their privacy by allowing others to piece together vast amounts of personal information.

Read the rest here.

So, yes – the implications of this ruling are ‘big’.

Please, keep in mind that I have no legal training whatsoever – so I am only commenting on what I saw and heard, as I saw and heard it.  But, having watched the appeal hearing, this is what I understood to be the issues this case revolves about:

  • Mr. Warman saw a number of posts on FreeDominion, a conservative discussion forum, which posted either comments that Mr. Warman considered defamatory, or which linked to a completely different website, where some other people made statements Mr. Warman considered defamatory
  • Mr. Warman decided to sue the anonymous posters – and Mark and Connie Fournier, the administrators of FreeDominion
  • The Honourable Mr. Justice Stanley Kershman decided in favour of Mr. Warman and ordered the Fourniers to release the information sought
  • The Fourniers have appealed – hence, this hearing.

It is important to understand Justice Kershman’s ruling, so we can understand the grounds of the appeal.  From the ruling (the links are mine):

[13] The Plaintiff relies on the case of Lillie v. Bisson, [1999) OJ. No. 3677 (CA.), a case
in which the Ontario Court of Appeal says that courts should encourage a liberal interpretation of
Rule 76 in order to reduce the cost of litigating modest sums.

…

[15] Tue Defendant relies on Irwin Toy for the proposition that disclosure should not be
automatic upon the issuance of a Statement of Claim:

If such were to be the case, the fact of the anonymity of the internet could be
shattered for the price of the issuance of spurious Statement of Claim and the
benefits obtained by the anonymity lost in inappropriate circumstances.

(16) The Defendants argue that the Plaintiff must establish a prima facie case by way of
affidavit evidence before disclosure is ordered.

…

[33] In the case before the court, we are dealing with an anti-hate speech advocate and
Defendants whose website is so controversial that it is blocked to employees of the Ontario
Public Service.

The Honourable Mr. Justice Stanley Kershman ruled that the Fourniers (of the ‘controversial website’) must ‘automatically’ hand over all information which could lead to the identification of the ‘John Does’ to the ( ‘anti-hate-speech advocate’):  hence, the appeal!

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The ‘Warman vs. FD/internet privacy’ appeal hearing: the facts

April 12, 2010 — xanthippa

Thursday, 8th of April, 2010,  the Superior Court of Ontario held an appeal hearing of the ‘Richard Warman vs. Connie Fournier, Mark Fournier and John Does’, often also referred to as the ‘Richard Warman vs. Free Dominion’ case and the ‘Richard Warman vs. internet privacy’ case.

But, let me start at the beginning.  Let me stress that I have absolutely no legal training, so these are my personal observations and should in no way be considered to be anything other than those of a regular person trying to make sense of this case and its implications on our daily lives.

First, the facts:

The case was appealed.  The Canadian Civil Liberties Association and the Canadian Internet Policy and Public Interest Clinic requested and were granted intervenor status.

So much for the ‘dry facts’!

More of what I have said about this hearing is listed on this page.

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‘Warman vs. internet privacy’ case appeal hearing, part 3: introductions

April 11, 2010 — xanthippa

They narrative of my observations of this event started out in a rather tongue-in-cheek manner:  fully aware of the importance of this case, this was my way of relieving some of the tension.  However, now that I will be describing the proceedings themselves, my reporting will be as accurate as possible. Connie Fournier’s observations of these same proceedings can be found here and here.

When I last left off, the 3 judges had entered the courtroom, dispensed with another matter and invited all the lawyers present – for both sides in the action as well as the two intervening parties.

Describing positions as seen from the spectator benches in the courtroom, the introductions began on the right:

On behalf of the intervenor Canadian Civil Liberties (CCLA), there  were

Representing the appellants, Connie and Mark Fournier, there was

On behalf of the intervenor Canadian Internet Policy and Public Interest Clinic (CIPPIC), there was

On behalf of the complainant, Richard Warman, there were

Very interesting group of people!

The judges did not introduce themselves.  However, these are their names (again, the order is from right to left, as observed if one had their back against the ‘main’ door):

  • The Honourable Mr. Justice Herman J. Wilton-Siegel
  • The Honourable Mr. Justice James C. Kent
  • The Honourable Mr. Justice Thomas A. Heeney

I do not know the name of the Clerk of the Court or the Bailiff.

As I said in my earlier post, the spectators included David Fewer, as well as Connie Fournier, Mark Fournier, Guy Poirier, a young woman whom I presume to have been an aid to the Katz/Lewis team, an unidentified blond woman in a gray pantsuit and myself.

Surprisingly enough, these were all the people there!

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    My observations from the ‘Warman vs. internet privacy’ appeal – part 2

    April 10, 2010 — xanthippa

    When my narrative last left off, I had finally arrived!

    (Connie Fournier’s excellent report is here and here.)

    It seemed like a miracle, but, despite my bumbling and probably due to more luck than skill, I had found Courtroom #36 where the hearing of the appeal of the Richard Warman vs. the Free Dominion folks, Connie and Mark Fournier and their users, was being held. There were none of the throngs of reporters I had expected – perhaps their quest in finding this well-concealed hearing was less successful than mine.

    After exchanging greetings with Mark and Connie, as well as Guy Piorier (a blog reader who also came to lend his support to the Fourniers), it was time to get oriented a little.

    I was there in time – he courtroom was still locked! The hearing had been scheduled for 10:00 o’clock. So far, so good.

    So, how much time was there before things got going? A quick glance at the clock just to the left of the courtroom door said it was…. 10:34.

    10:34?!?!?

    Ah – it was showing ‘real time’! Not the ‘we-stole-an-hour-from-you-and-you-can’t-do-anything-about-it’ time! OK – let’s get that adrenalin back under control….

    10:45 – as the clock read: a huddle of black robes just outside the courtroom door. Yup – the door is still locked.

    The air is positively crackling with anxious anticipation!

    10:50 – as the clock read: doors opened and the lawyers – plus whom I presume to have been a support person to one of their ‘groups’ – and all the waiting spectators enter Courtroom #36.

    Stepping into the courtroom was like taking a step backwards in time. By about an hour. The clock inside was set to the Daylight Savings Time.

    OK – I am new at this ‘on the grounds, reporting’ thing, but, I seem to recollect that I am to give as many facts as I will have managed to collect. Here, then, is the full and complete list of spectators who entered the courtroom: Mark Fournier, Connie Fournier, Guy Poirier, David Fewer and, well, yours truly. Yes. That is it. In total.

    Instead of fighting for a seat with throngs of other spectators, as was my fear, I now had a different dilemma with respect to finding a seat. Do I sit on the bride’s side, or the groom’s side?

    Is referring to the sides as ‘bride’s’ and ‘groom’s’ disrespectful to the court?

    That box in the middle – that is ‘the prisoners’ box’ and, apparently, it is disrespectful to refer to it as ‘the penalty box’. I know, because I asked.

    Things did work themselves out. There were 3 sections of seats: one on each side and one in the middle, right behind the prisoners’ box. Mr. Fewer took a seat on the left (all the ‘side’ references I’ll make are as if you were to stand with the ‘main’ door immediately behind your back), towards the front. The young woman whom I presume to have been a support person to the ‘Warman’ lawyers sat a few rows behind him.

    I followed Connie and Mark towards the front right, where we shared a row, while Mr. Poirier sat right behind us.

    The lawyers resolved themselves into seats at a long table immediately in front of the prisoners’ box, with their backs to us, spectators. Their 6 chairs were facing forward, divided in the middle by a lectern they would speak from when making their submissions to the court (I think that is the proper term – if not, please excuse me….the sum of my ‘legal experience’  is watching ‘Jurisprudence’ on TV, so these are all strictly the observations of a legal amateur).

    Immediately in front of the lawyers’ table, and slightly raised, was the Clerk’s table – he sat facing us. At the left side of the Clerk’s table sat another person.

    10:02:10 – a deep hush descended on the courtroom. The atmosphere was so thick, you could not just ‘cut it with a knife’ – you could chip at it with an ice-pick! The only thing we could hear was the distant heartbeat of high-heeled pumps, drumming purposefully through the corridors of justice…

    10:05:15 – another spectator wafted in. A young blond woman in a gray pantsuit, high-heeled pumps and a perplexing demeanour. She sat in the very middle of the ‘spectator area’, which took up roughly 2/3 of the area of the room.

    I called her demeanour perplexing, and, to me, it was. It was not so much what she did – but how she did it. She sat there. Very, very deliberately, she avoided all eye-contact, looking either directly ahead or at her very nice shoes. If my shoes were that nice, I’d probably spend considerable time looking at them, too – but she did not look like she had the industrial dose of OCD that I do, so that is probably not saying much.

    Perhaps she had a tooth-ache. She would come in at the last moment, then rush off, at the start of each break, so nobody could say hi to her (I would have liked to have). But, I am getting ahead of myself!

    10:05:45 – announced and ushered in by the bailiff (who looked nothing like Bull Shannon), the 3 judges who would be hearing this appeal entered the courtroom.

    They did look very official (in a good way). They wore black lawyers’ robes, but with a crisp, bright red sashes t top the off.

    Upon taking their seats, the judge in the centre went over some correspondence from an appellant from a case that was put before the Fournier one, but where the appellant had mistakenly showed up the day before the proper date (perhaps the appellant got help form the information kiosk), so they agreed to hold that hearing over till the 10th of October, 2010.

    At this point, the person sitting at the side of the Clerk’s table was excused.

    Next, the judges invited everyone to introduce themselves….but, that shall be then next instalment in my report. And, as the real, serious stuff is about to start, I’ll try to minimize injecting humour to relieve the tension of this truly important legal event.

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    Connie Fournier’s take on the ‘Warman vs. Free Dominion’ appeal hearing, part 2

    April 9, 2010 — xanthippa

    With Connie’s permission, here is how she saw, heard and understood the hearings of the ‘Warman vs FD John Doe Appeal’, as transcribed from her notes and posted here, on Free Dominion.

    Part 1 is here. This is part 2.

    The next person up was Tamir Israel representing the Canadian Internet Policy and Public Interest Clinic (CIPPIC). He is a soft-spoken and intelligent young man and he, too, had a firm grasp on the issues at stake here.

    He started by saying that the position of the CIPPIC was that anonymity should not be an absolute shield. (We agree with all of our intervenors in that regard, btw).

    Tamir said that privacy, through the lens of anonymity, should be protected. He said that the online sphere has unique issues which force privacy issues to the forefront that weren’t visible before. He continued saying that the problem with the online sphere is that activities that used to take place in a more private setting are now occurring in a semi-private setting online. He said privacy is control over your personal information, and that there is a reasonable expectation of privacy.

    Tamir went on to say that anonymity is important for allowing people to do things they once did in private, like having conversations with friends, political speech etc., in a semi-private sphere.

    Tamir hit a huge bullseye when he said that, in criminal cases, a warrant is required in order to get personal information, and that the warrant was only issued if there was reason to believe the person was guilty. He also said that information about anonymous posters reveal much more than identity.

    One of the judges quickly jumped on this and agreed that there was a parallel between discovery in civil matters and a search warrant in criminal cases.

    Tamir said that the position of the CIPPIC was that an intermediary must be convinced that there is wrongdoing. He said it is inherent in the adoption of an alias that there is an expectation of privacy. (Another bullseye!!)

    Tamir said that Terms of Service on a website were insufficient to use as evidence that there was no expectation of privacy because the adoption of an alias shows otherwise.

    *  *  *

    Next, Tamir talked a bit about the process that the CIPPIC would recommend as a test in these cases.

    As far as procedural steps go, if the intermediary is a Party in the action, they should disclose the existence of the information on the John Does. The plaintiff should take steps to try to identify them on his own.

    There could be a Counsel for the John Doe if they do not wish to come forward (this, I think, would come out of the balancing that was discussed before). If the standard was a prima facie case, the Court could rule out Does whose comments did not meet defamation standards.

    Tamir noted that if a John Doe was outed for the purposes of a defamation suit, the case went to Court and the plaintiff lost, the damage would already be done to the John Doe. He suggested that three things should be considered:

    – the strength of the claim
    – the gravity of the defamation
    – the breadth of the readership

    He said that identity is not relevant to assessment of whether or not a comment is defamatory.

    Tamir said that an intermediary should use readily available tools to notify the Does that they are being targeted with a lawsuit. Possible tools would be private messages or emails, and that a 20 day limit should be set for this notification.

    Tamir stated clearly that the identification between a screen name and a real name is the link that the privacy refers to. It is the context in which they are being disclosed that makes the name private. He stressed that there is an expectation of privacy between a name and a username.

    *  *  *

    Tamir Israel was finished his submissions, and it was on to James Katz representing Richard Warman.

    Katz seemed pretty relaxed and ready for his turn as we waited for the judges to return.

    Katz started out by saying that he disagrees with the use of the BMG case and the Irwin Toy case as examples in this case because they applied to third parties (ie the people with the information were not being sued).

    Immediately, a judge asked him about the case that Wendy made about the potential for abuse where a plaintiff would simply sue the information holder, too, to get around having the prove a prima facie case. Another judge asked why there should be a test in cases where the information comes from third parties, but not when the information holder is a party in the case. They asked him if he saw a distinction in principle that would justify the different standards.

    Katz said that he didn’t see a distinction in principle.

    At this point, Katz started talking about how what Warman was requesting was a different KIND of information. I, honestly, wasn’t really sure what he was trying to say, and I don’t really think the judges were either because they looked a bit puzzled.

    One distinction that Katz was making was that an IP address, by itself, would not lead directly to the Does, and that a prima facie case would be required at the next level when they wanted subscriber information from the internet service providers.

    A judge said, “Your argument turns on the Court being satisfied that individuals cannot be identified directly by this information.”

    Katz replied that the “nature” of Free Dominion makes him believe that the emails wouldn’t identify them because they want to hide behind these identities and they would be “pretty good at covering their tracks”.

    *  *  *

    I forgot to mention that Katz started his statement by reading a list of names Warman was called by our members. “Thug, Nazi, brownshirt…”, and some that are too awful to even mention.

    *  *  *

    Katz cited a case called Caro Energy Limited. He said that an IP address is a tool that can be used by a third party to identify a computer. A judge jumped in to say that nobody was arguing that this information was relevant.

    Another judge, again, brought up the point that email addresses could result in directly identifying Does. Katz said that Warman would prove a prima facie case for the third parties in regard to the IP addresses. He says that the rules for Simplified Procedure state that info that is not privileged should be produced and that Judge Kershman looked at privacy considerations when he made his ruling on the motion. Katz cited the Wilson case that said there was no expectation of privacy with an IP address. A judge said that, in the Wilson case, the Does consented to the release of their information and that our John Does chose to be anonymous.

    At this point, Katz brought out the FD user agreement and read the part that states that if you break the law we won’t protect you and you are on your own. I guess because it hasn’t been proven that any of the Does have broken the law, this line of thought didn’t really go anywhere and it was dropped quite quickly.

    A judge asked Katz if the motions judge erred in saying that relevance and privilege are all that is important in deciding if information should be disclosed.

    Another judge quoted Kershman where he talks about Irwin Toy in his ruling. The judge asks Katz, “Isn’t that a rejection of the privacy issue?”

    A different judge said that the Kershman ruling appears to be a conclusion of law, and that his decision regarding privacy did not seem to be related to specific evidence before him.

    A judge remarks that Kershman appears to have based his decision on Wilson because it was more current.

    When asked by a judge if he felt that Kershman had made an error in law, Katz said he didn’t think so.

    Katz concluded his submissions by stating that Warman would be willing to attempt to meet a test if the judges rule that a test needs to be met. He said Warman is very serious about protecting his reputation.

    *  *  *

    After Katz finished his submissions, the judges gave our side the chance to respond.

    Tamir Israel kicked it off by saying that PIPEDA rules say that IP addresses ARE identifiers and need to be protected as such. He used the example of a social insurance number. The number itself can’t lead you directly to a person, but, using that number, you can get all kinds of information about the person.

    He reiterated that a prima facie case can be made without knowing the identity of the Doe. Issues such as malice would not been to be proven at this stage.

    Tamir finished by arguing for a prima facie case to be the standard with a balancing of interests afterward.

    Wendy then took to the podium again and talked about Section 8 rights. She said there had to be a consideration of the totality of the situation, and she pointed out that there was consent from the Does in Wilson, it didn’t really relate to our case. Wendy said that it is important to remember that a test must be applied to make sure privacy issues are considered. She said that a fair reading of the decision in our motion shows he felt the Simplified Procedure rules were absolute and that there was no affirmation of freedom of expression as a Charter Right. She continued, pointing out that, on BMG, Kershman simply said that the rules were different for third parties.

    Finally, Wendy read from the Kershman ruling where he said that the plaintiff is an anti-hate speech advocate, and defendants whose “website is so controversial that it is blocked to employees of the Ontario Public Service.” Wendy said that Kershman is being disapproving of the speech on FD. She said that he is saying that this is controversial speech, so that is a reason to reject…REJECT the Charter issues. She finished up by saying that if Kershman did consider it, he was wrong in law.

    Barbara chose to let Wendy’s powerful last words wrap up our case for us, so we were done.

    At this point, the judges asked us to stick around for 15 minutes because they wanted to talk and then come back and maybe ask some questions.

    *  *  *

    After the recess, the judges came back and they had two questions. They wanted the parties to agree on costs, and it was agreed that the losing Party would pay $10,000 to the winner.

    Then, they asked an interesting question.

    The judges wanted to know, because there is a prima facie test when someone requests information from a third party, how you would prevent duplication if you added another test at the “lower level”. (For example, if they had to pass a test to get the IPs from us, then had to pass it again to get the subscriber information for those IPs from Bell).

    Wendy said that it is wrong to assume that there would always be a second step. After the first step, the John Does could be identified though their emails. She said that if there was another application for information, if there is consistency in law, they could simply pull up the first motion and make a few changes and submit it again for the new information. The costs would be minimal. She also noted that ISPs don’t usually oppose motions for information if they meet the BMG test. In any case, Wendy said, the cost is small compared to the rights at stake.

    Tamir got up to say, also, that the Court can incorporate the need for ISPs to disclose subscriber information into the first order so that the same order can be used at both levels.

    With that, we were done!

    This is it – in Connie’s own words!

    While many of my observations were similar, there were several points I saw/heard/understood quite differently.  I apologize for how long it is taking me to write up my take on this, but, I am a slow thinker, slow writer and it is taking me forever to decipher my handwriting in the 48 pages of notes I took.  So, please, bear with me – my version of the event is coming ‘soon’!


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